BILL ANALYSIS
C.S.S.B. 528
By: Barrientos (Hunter, Bob)
May 18, 1995
Committee Report (Substituted)
BACKGROUND
Texas has many archeological resources that are being looted from
private and public lands. Many of these resources are found in the
unmarked burials of Native Americans and African-Americans.
Looters enter public and private property to unearth burials in
order to recover artifacts and then sell the contents to
collectors.
PURPOSE
As substituted, S.B. 528 sets forth regulations for the protection
of certain unmarked burials with human remains or funerary objects.
In developing the committee substitute, careful attention has been
given to insuring that the bill does not affect existing
collections of artifacts in private ownership. Moreover,
substantial effort has been made so that the bill does not prevent
the collection of arrowheads or other Indian artifacts that are not
a part of a human grave.
The intent of the bill is to set up procedures to report the
discovery of human skeletal remains and to set out criminal
penalties for grave robbers who intentionally disturb burials to
obtain human skeletal remains and associated funerary objects for
personal use or for profit.
RULEMAKING AUTHORITY
In the committee's opinion, this bill grants rulemaking authority
to the Texas Historical Commission in the following section:
SECTION 2 - Section 192.010, Natural Resources Code.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 42, Penal Code, by adding Section 42.12,
as follows:
Sec. 42.12. DISTURBING AN UNMARKED BURIAL. (a) Defines
"funerary object," "human remains," and "unmarked burial."
(b) Provides that a person commits an offense if the person
intentionally or knowingly disturbs an unmarked burial;
removes any human remains or funerary objects; or buys,
sells, or barters human remains or funerary objects.
(c) Provides that a person commits an offense if the person
knows that a burial is being disturbed or damaged and the
person intentionally or knowingly fails to notify the
sheriff of the county in which the burial is located (county
sheriff) that the burial is being disturbed, damaged, or
destroyed.
(d) Provides that an offense under Subsection (c) is a Class
B misdemeanor and that an offense under Subsection (b) is a
state jail felony.
(e) Provides an exception to prosecution for an alleged
violation of this section that the human remains or funerary
objects were recovered under certain statutes.
(f) Provides a defense to prosecution for an alleged
violation of this section that the human remains or funerary
objects were recovered under certain statutes.
(g) Provides that if ownership of the remains cannot be
established to the satisfaction of the presiding judge at
the termination of a criminal prosecution of a defendant,
the state assumes jurisdiction over any human remains or
funerary objects associated with the offense.
SECTION 2. Amends Title 9, Natural Resources Code, by adding
Chapter 192, as follows:
CHAPTER 192. DISCOVERY OF UNMARKED BURIALS
Sec. 192.001. DEFINITIONS. Defines "commission," "funerary
object," "human remains," "medical examiner," "Native American
remains," "professional archeologist," "state archeologist,"
and "unmarked burial."
Sec. 192.002. DISCOVERY OF UNMARKED BURIALS. (a) Requires a
person who discovers an unmarked burial to stop any activity
that may disturb the burial and to report the location of the
burial to the county sheriff or the state archeologist.
(b) Requires the person making such discovery to take
reasonable steps to secure and maintain the site's
preservation.
(c) Provides that steps in 192.002(b) also apply to soil
immediately surrounding the burial if other graves are
likely in the area.
(d) Requires an officer to whom an unmarked burial is
reported to keep the location of the burial confidential and
prohibits the location from being disclosed publicly.
Sec. 192.003. FAILURE TO REPORT; CRIMINAL PENALTY. (a)-(b)
Provide that a person commits a Class C misdemeanor if the
person knowingly fails to report the discovery of an unmarked
burial to the county sheriff or state archeologist within 48
hours.
Sec. 192.004. DISTURBANCE OF BURIAL; CRIMINAL PENALTY. (a)
Provides that a person commits an offense if the person
knowingly disturbs an unmarked burial or funerary objects.
Provides that a person commits an offense if the person
disturbs an unmarked human burial with the intent to
appropriate human skeletal remains or funerary objects.
Provides that a person found in possession of human remains or
funerary objects more than 50 feet from the burial is presumed
to intend to appropriate the remains or objects.
(b) Provides that an offense under Subsection (a) is a
third degree felony.
Sec. 192.005. DISPOSITION OF REMAINS. (a) Requires a law
enforcement officer or state archeologist to notify the
landowner and the medical examiner if there is reason to
believe a burial site may contain human remains. Requires the
landowner to be notified within five working days if the
remains reported are associated with or suspected of
association with any crime.
(b) Requires the state archeologist to notify the
landowner within 15 working days if the remains are not
associated with or suspected of association with any crime.
(c) Sets forth required activities for the state
archeologist if the state archeologist's review of the human
remains or funerary objects suggests a direct historical
relationship of the remains to a Native American tribal or
other ethnic group.
(d) Requires all Native American burial remains and
funerary objects to be placed for curation purposes by the
state archeologist with certain state or local governmental
entities that receive federal funds. Authorizes the state
archeologist to designate an appropriate repository for
curation of the remains if they are not directly related to a
tribal or ethnic group or if the remains are not claimed for
repatriation.
(e) Requires unmarked burials and funerary objects
discovered by archaeologists during their official duties to
be reported to the state archeologist within three working
days. Requires the archeologist to report to the state
archeologist concerning the cultural and biological
characteristics of the burial and to recommend temporary
disposition of the remains for purposes of analysis within a
certain time period.
Sec. 192.006. EXCAVATION NOT REQUIRED. Provides that this
chapter does not require excavation of an unmarked human
burial unless excavation is necessary to prevent destruction
of the remains or funerary objects.
Sec. 192.007. DISPLAY OF HUMAN REMAINS; CRIMINAL PENALTY.
(a)-(b) Provides that a person commits a Class A misdemeanor
if the person knowingly displays human remains for a profit or
to aid a commercial enterprise and that each day of display is
a separate offense.
Sec. 192.008. INVOLVEMENT OF PRIVATE LANDOWNERS. (a) Requires
that notification be given to a landowner when human
remains are discovered and are under review by the state
archeologist.
(b) Provides that the discovery of human remains on private
property does not allow public access to the area where
remains are discovered.
Sec. 192.009. DEFENSES TO PROSECUTION. (1) Provides a defense
to prosecution for accidental disturbance resulting from (a)
legitimate activity; and
(b) when there is no intention of further disturbance of an
unmarked burial.
(2) Provides defense to prosecution for a law enforcement
officer, medical examiner, professional archeologist, etc. when
the disturbance of the unmarked burial occurred in the
performance of the person's official duty.
Sec. 192.010. RULEMAKING AUTHORITY. Allows the Texas
Historical Commission to adopt rules to implement this Act.
SECTION 3. Makes application of this Act prospective.
SECTION 4. Effective date: September 1, 1995.
SECTION 5. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
1. CSSB 528 contains language to protect those involved in
legitimate activities such as
agriculture, industry, oil, gas, drilling and mining who
accidentally disturb unmarked burial sites. In addition, language
borrowed from a comparable Arizona statute authorizes legitimate
activity to continue so long as the site remains undisturbed to the
extent reasonably possible. Although this was the intent of the
original bill, the substitute makes this clear.
2. CSSB 528 does not affect existing collections of artifacts
in private ownership nor does it prevent the collection of
arrowheads or other Indian artifacts that are not a part of a human
grave. These had been concerns expressed regarding the original
bill.
3. CSSB 528 requires that notification be given to a landowner
when human remains are discovered and are under review by the state
archeologist. A landowner may also request to be involved in
consultation related to the disposition of the remains. Further,
the discovery of human remains on private property does not allow
public access to the area where the remains are discovered. The
original bill did not include these property rights protections.
4. CSSB 528 also makes technical corrections to the
definitions of a funerary object and a professional archeologist:
(a) a funerary object is to include all items placed directly with
a deceased individual at the time of death; (b) a professional
archeologist is someone who meets any of the criteria under the
definition.
SUMMARY OF COMMITTEE ACTION
SB 528 was considered by the House Committee on State, Federal, and
International Relations in a public hearing on 3 May 1995.
The following persons testified in favor of the bill:
Mr Tony Byars
American Indian Resource and Education Coalition, Inc.
Mr. Randy M. Lee
Texas Land Title Association
Mr. Alan J. Wormser
Council of Texas Archeologists
Mr. Elton R. Prewitt
representing himself
Mr. Richard TwoBraids
American Indian Resource and Education Coalition, Inc.
The following persons testified against the bill:
Mr. Ben Sebree
Texas Mid-Continent Oil & Gas Association
Mr. Wade Stansell
Texas Utilities
Mr. Steve Perry
Texaco Exploration & Production
The following person testified neutrally on the bill:
Dr. Jim Bruseth
Texas Historical Commission
The bill was left pending.
SB 528 was again considered by the committee in a formal meeting on
18 May 1995.
The committee considered a complete substitute for the bill which
was adopted without objection.
The bill was reported favorably as substituted with the
recommendation that it do pass and be printed, by a record vote of
6 ayes, 0 nays, 0 pnv, 3 absent.